Oh v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Oh v Allianz Australia Insurance Limited [2022] NSWPICMR 65
ClaimanT:	Eun Sil Oh
Insurer:	Allianz Australia Insurance Limited
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	17 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit review; dispute about whether for the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) of the Motor Accident Injuries Act 2017 (2017 Act) the costs and expenses incurred by the claimant are reasonable and necessary; whether interpreter fees reasonable and necessary costs pursuant to section 8.10 of the 2017 Act; whether interpreter fees payable in the alternative under section 3.24 – the reviewable decision is affirmed.
Determinations made:	CERTIFICATE OF DETERMINATION 1. The reviewable decision is about: (a) whether for the purposes of s 3.24 of the Motor Accident Injuries Act 2017 (the MAI Act) the cost of treatment and care provided to the claimant is reasonable and necessary and is therefore a merit review matter under Sch 2, cl 1(i) of the MAI Act; and/or (b) whether for the purposes of s 8.10 of the MAI Act the costs and expenses incurred by the claimant are reasonable and necessary, and is therefore a merit review matter under Sch 2, cl 1(aa) of the MAI Act. 2. The reviewable decision is affirmed. 3. The claimant’s entitlement to costs of this merit review is nil.

STATEMENT OF REASONS

INTRODUCTION

Eun Sil Oh (the claimant) was involved in a motor accident on 8 January 2021.
The claimant made a claim for statutory benefits under the MAI Act, including for payment of certain interpreter fees said to form part of the claimant’s treatment.
On 9 July 2021 the claimant’s entitlement to statutory benefits ceased.
The insurer refused payment of interpreter fees incurred after the claimant’s entitlement to statutory benefits ceased.
On 9 November 2021 the claimant requested an internal review of the insurer’s decision to refuse payment of interpreter fees incurred after 9 July 2021.
On the same date the insurer declined to conduct an internal review on the basis the insurer considered it did not have jurisdiction.
The claimant has applied for a merit review of the insurer’s decision to refuse payment of interpreter fees.

SUBMISSIONS

The claimant’s submissions are confusing and difficult to follow. However, it appears the claimant seeks payment of interpreter fees on the basis they are either costs of treatment and care under s 3.24 of the MAI Act or costs of the claim for statutory benefits under s 8.10. That said, the claimant’s submissions do not address s 3.24 in any detail and largely focus on s 8.10 as the basis upon which the claimant says interpreter fees are payable under the MAI Act. In relation to s 8.10 the claimant relies on previous merit review decisions ALV v NRMA Insurance (Merit Review) [2020] NSWSIRAPIC 105 (ALV decision) and Hafeez v AAI Ltd t/as AAMI [2021] NSWPICMR 25 (Hafeez decision).
The insurer submits there is no jurisdiction to conduct a merit review regarding payment of interpreter fees as interpreter services do not fall within the definition of treatment and care under the MAI Act. The insurer relies on the decision of ABV v AAI Ltd t/as GIO [2021] NSWPICMR 26.
It is understood the insurer also submits that interpreter fees incurred after 9 July 2021 are not payable as the claimant had been advised that his entitlement to statutory benefits ceased on this date.

PROCEDURAL HISTORY

The claimant lodged submissions dated 7 July 2022 and supporting documents comprising 63 pages. As noted, the submissions are confusing, and the information provided was insufficient for the purpose of this merit review.
Accordingly, on 26 August 2022 I issued directions to the parties which required the claimant to, among other things, provide the following further information:
(a) a complete copy of the progress notes of Dr Lam for the period 12 August 2021 to 17 June 2022 inclusive;
(b) submissions which must:
(i)include a statement as to the nature and purpose of the legal services provided to the claimant on 22 October 2022, 26 October 2022 and 17 June 2022;
(i)address the matters in cl 5.16 under Part 5 of the Guidelines, and
(i)include references to the page number(s) in the claimant’s document bundle where evidence in support of the claimant’s contentions regarding the matters under cl 5.16 of the Guidelines is found.
The directions provided that the parties must ensure:
(a)    there is no duplication in the documents provided;
(b)    documents appear in chronological order (where relevant);
(c)    the document bundle is page numbered consecutively from start to end;
(d)    the document bundle includes an index, and
(e)    the document bundle does not include material irrelevant to the subject dispute.
In answer to these directions the claimant lodged further submissions dated 17 October 2022 and supporting documents comprising 355 pages. Despite the volume of documents, the claimant’s further submissions and documents add little, if any, value and fall short of compliance with the directions, as follows:
(a)    there is duplication in the documents;
(b)    many of the documents appear irrelevant to the dispute;
(c)    there are 329 pages said to be the medical records of Dr Lam, with no index for this section of the document bundle, which appears to have simply been “dumped” into the bundle without regard to relevance of the material;
(d)    the claimant was directed to provide Dr Lam’s progress notes covering the consultation dates in respect of which interpreter fees are claimed but there are no progress notes among the 329 pages of medical records;
(e)    the claimant was directed to state the nature and purpose of the legal services provided in connection with which interpreter fees are claimed and, in this regard, the directions provided the following guidance:
“This should be in the form of a clear statement as to the specific aspect of the claim under consideration during the client conference/attendance on each of these dates when an interpreter was retained, by reference for example to a specific decision of the insurer, internal review decision or specific application to the Commission.”
(f)    however, the description provided by the claimant is limited to “Consultation with the legal representative Stephen Young Lawyers”, which provides no new information and gives no insight into to whether the interpreter fees were reasonable and necessary in the circumstances;
(g)    the claimant failed to address c 5.16 of the Guidelines, and
(h)    the claimant makes no reference in their submissions to any page number(s) in their document bundle.
In short, despite being legally represented, the claimant’s updated submissions purportedly in answer to the directions dated 26 August 2022 are simply a regurgitation of the previous submissions, which were deficient, and show little comprehension of the directions. The claimant has failed to adequately comply with the directions.

ISSUES

The material provided by the parties raises the following issues:
(a) whether there is jurisdiction to conduct this merit review;
(b) if yes, whether the claimant is entitled to payment of the subject interpreter fees under ss 3.24 and/or 8.10 of the MAI Act;
(c) whether exceptional circumstances exist that justify payment of legal costs outside the regulated maximum under s 8.10 of the MAI Act, and
(d) whether a costs penalty should be imposed on the insurer under s 6.21 of the MAI Act on the basis the claimant contends the insurer’s denial of liability regarding payment of interpreter fees is unreasonable.

REASONS

Jurisdiction

The insurer submits there is no jurisdiction to determine the dispute in relation to interpreter services as these services do not fall within the definition of ‘treatment and care’ under the MAI Act. The insurer relies on ABV v AAI Ltd t/as GIO [2021] NSWPICMR 26 (ABV), a decision which is not binding.
I do not agree with the analysis in ABV. Whether interpreter fees are payable under s 3.24 is a question of whether such costs were reasonable and necessary in the particular circumstances of the matter rather than a threshold jurisdiction point. There is clearly jurisdiction under Sch 2(1)(i) to conduct a merit review regarding whether the costs are reasonable and necessary for the purpose of s 3.24.
A determination as to whether interpreter services are a reasonable and necessary cost of treatment and care requires an analysis of the specific circumstances in which the interpreter services were provided. Interpreter services will not be reasonable and necessary in every case of a non-English speaking claimant or a claimant whose first language is not English. They may also not be reasonable and necessary for each and every occasion a claimant uses the services of an interpreter in connection with treatment.
The issue of whether the interpreter fees are reasonable and necessary costs of treatment and care for the purpose of s 3.24 is discussed further below and those reasons should be read as part of my determination that I have jurisdiction.
I am satisfied based on the above and further discussion below that I have jurisdiction to determine the dispute under Sch 2, cl 1(i) of the MAI Act.
To the extent the claimant seeks payment of interpreter services in the alternative under s 8.10, I have jurisdiction to determine the dispute under Sch 2, cl 1(aa) of the MAI Act.

Section 3.24

The claimant’s submissions are convoluted and confusing. On their face, the claimant seems to suggest all interpreter fees are legal disbursements under s 8.10, including those services provided in connection with the claimant obtaining treatment from their general practitioner (GP), Dr Lam and from other treatment providers.
However, there is a clear distinction between costs of a claim for statutory benefits, which fall under s 8.10 and costs of treatment and care under s 3.24. The costs of an interpreter to assist the claimant to consult with their GP cannot possibly be the costs of making a claim on the insurer.
Making a claim and obtaining treatment are two distinct, separate activities. One is the act of the claimant obtaining treatment and the other is the act of the claimant liaising with the insurer about a claim for the insurer to pay for that treatment that is, to pay the “underlying” treatment costs. The costs of a “claim” are the costs associated with requesting that the insurer pay statutory benefits such as the costs of treatment and care. Whether such claim is approved or not, the claimant’s attendance upon their GP and any costs associated with this are the “underlying” costs that are the subject of the claim for statutory benefits as distinct from the costs of making that claim.
Accordingly, those interpreter services which the claimant contends in submissions dated 17 October 2022 were incurred in connection with the following fall for consideration under s 3.24 of the MAI Act:
(a)    consultation with general practitioner Dr Angela Lam;
(b)    consultation with the treating physiotherapist Ms Lin, and
(c)    consultation with the treating psychologist Ms Yu.
Section 3.24 of the Act provides that:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care.
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.”
Pursuant to s 3.24(2) “no statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned” (emphasis added).
Accordingly, the cost said to be a cost of treatment and care under s 3.24 must be both reasonable and necessary in the circumstances of the claimant and the specific treatment services that were provided.
‘Treatment and care’ is defined under s 1.4(1) of the MAI Act as follows:
“‘treatment and care’ means the following:
(a) medical treatment (including pharmaceuticals),
(b) dental treatment,
(c) rehabilitation,
(d) ambulance transportation,
(e) respite care,
(f) attendant care services,
(g) aids and appliances,
(h) prostheses,
(i) education and vocational training,
(j) home and transport modification,
(k) workplace and educational facility modifications,
(l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
There does not appear to be any controversy that treatment provided by Dr Lam, Ms Lin and Ms Yu was “medical treatment” within the meaning of ss 1.4(1) (a) of the MAI Act and therefore, “treatment and care” within the meaning of s 3.24 (1) of the MAI Act.
Section 3.24 (1) of the MAI Act provides that an injured person is entitled to statutory benefits for treatment expenses incurred in connection with providing treatment. It follows that if an injured person requires the assistance of an interpreter to be present when specific treatment is delivered, such requirement would be intrinsically linked to the treatment. It also follows in these circumstances, that the cost of the interpreter service is an expense incurred in connection with the treatment and is therefore a cost “of treatment and care”.
The State Insurance Regulatory Authority (SIRA) FAQ’s published for the guidance for allied health practitioners provides that when a psychologist submits an Allied Health Recovery Request (AHRR) request form to the insurer for the approval of the cost of providing therapy/treatment, the request should also include any interpreter costs to enable delivery of the service. The SIRA FAQ’s are not part of the Regulation. However, the publication serves to re-enforce the view that an interpreter service provided in the context of psychological treatment may, depending on the particular circumstances, be a necessary expense for the delivery of the therapy/treatment. Of course, this will not always be the case and is in the context of psychological treatment and not treatment more broadly. For example, if the treatment provider is able to converse with the claimant in the claimant’s native language or if the claimant has a sufficient command of the English language interpreter services may not be necessary for the delivery of the treatment. If the services can be provided regardless of any language barrier (which may depend on the nature of the psychological treatment) then interpreter fees also would not be necessary.
In many cases, interpreter fees may be considered reasonable. However, s 3.24(2) makes clear that the fees must also be necessary in the circumstances and not just reasonable. If they are reasonable but not necessary, they are not payable.
In the present case, there is no evidence to suggest interpreter services were necessary for the treatment to be delivered to the claimant. The claimant was given an opportunity via the directions dated 26 August 2022 to provide evidence in support of the claim. However, the claimant has failed to provide any relevant evidence.
All that is known is that the interpreter services were incurred in connection with attendances on the GP, Dr Lam. The claimant has not provided the progress notes of Dr Lam (despite a specific direction to do so), which might shed light on the purpose of each consultation that is the subject of a claim for payment of interpreter fees.
I have concluded above that for interpreter services to be payable in connection with treatment they must be intrinsically linked to the treatment such that interpreter services are necessary for the delivery of the specific treatment in question. In other words, the treatment could not reasonably be delivered to the claimant without an interpreter.
There is no evidence on which I could determine whether the interpreter services for each of the consultations with Dr Lam were reasonable or necessary. Presumably, the claimant consulted with a GP from time to time prior to the accident. There is no evidence to suggest she required an interpreter before the accident for the delivery of treatment by a GP. If the claimant were able to obtain GP treatment from time to time before the accident without the assistance of an interpreter, the need for an interpreter for GP attendances related to injuries arising from the motor accident would not likely be reasonable or necessary.
If the claimant attended, for example, for repeat or updated prescriptions, a referral to a specialist or a routine examination by the GP I do not consider interpreter services intrinsically linked to the delivery of such treatment. There would be many other instances in the context of the type of treatment provided by a GP where interpreter services are unlikely to be necessary for the delivery of that treatment, even though the patient speaks English as a second language, as is the claimant’s case.
In any event, I do not know the nature of the treatment delivered by Dr Lam on each of the dates in respect of which interpreter fees are claimed and I am therefore unable to determine whether any of the interpreter fees were reasonable and necessary for the delivery of the specific treatment. I would observe, however, that given the claimant likely has a history of obtaining treatment from a GP over the course of her lifetime for a variety of matters prior to the accident and likely did so without the assistance of an interpreter it is unlikely that interpreter services are necessary in connection with the kind of treatment expected to be delivered by a GP post-accident.
The claimant’s updated submissions now include additional interpreter fees in connection with treatment provided by Ms Loewe Lin, physiotherapist and Ms Keisha Yu, psychologist.
As with Dr Lam, no information has been provided by the claimant regarding the nature of the treatment provided on the relevant dates by Ms Lin or Ms Yu.
A physiotherapy consultation generally consists of physical examination and physical exercise under basic instruction and guidance by the physiotherapist. It is not suggested that the claimant does not speak English. Rather, it is contended that the claimant speaks English as their second language. On this basis, the claimant submits “it is reasonable and necessary for them to seek treatment and care with the presence of a NAATI-accredited Korean speaking interpreter”. However, if it were a necessary part of the delivery of the treatment one would expect there to be instances prior to the accident where the claimant required the presence of an accredited interpreter for the purpose of delivery of treatment by a medical or other health care provider. There is no suggestion this was the case pre-accident and no evidence of this occurring pre-accident.
Given the nature of a physiotherapy consult, the fact the claimant speaks English, albeit as their second language, I see no reason why physiotherapy services could not be delivered to the claimant without an interpreter. I therefore consider it unlikely that interpreter services were necessary for consultations with Ms Lin.

Absent sufficient information about the nature of the consultation with Dr Yu I cannot form any view as to whether interpreter services were necessary for the delivery of treatment by Dr Yu. Psychological treatment is more likely to require a reasonable level of English speaking (and potentially writing) ability than treatment provided by a GP or physiotherapist. However, it will depend on the specific circumstances, which have not been made known by the claimant. As a minimum, there should be evidence from the psychologist as to the nature of the consultation and whether they would have been able to deliver the treatment without an interpreter. Other relevant matters might include information about the claimant’s ability level in speaking English as a second language such as how long she has resided in Australia, whether she has undertaken any schooling or other tuition conducted in English in Australia (or elsewhere), whether she works and if so in what type of role and whether she has ever required an interpreter in order to obtain treatment prior to the accident and if so, in what circumstances.
The claimant has the onus of proof and must establish on the balance of probabilities that interpreter fees were both reasonable and necessary for the delivery of the subject treatment. As nothing is known about the circumstances in which interpreter services were provided other than the name and practice area of the treatment provider and the date of attendance, I cannot be comfortably satisfied on balance that the interpreter services were both reasonable and necessary on each occasion, as required by s 3.24. It follows that interpreter fees in connection with Dr Lam, Ms Lin and Ms Yu are not payable under s 3.24.

Clause 5.16 of the Guidelines

I note the claimant’s submissions conclude at paragraph 45 that this merit review application is also made under Sch 2, cl 1(m) of the MAI Act (in addition to Sch 2, cl 1(i) and cl 1(aa)) regarding whether, for the purpose of s 3.28 (cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment or care is authorised by the Guidelines.
A merit review under Sch 2, cl 1(m) would require the claimant to engage with cl 5.16 of the Guidelines and comply with the directions of 26 August 2022, in particular directions 1(d)iii and 1(d)iv. The claimant failed to comply with these directions despite being legally represented and despite compliance being mandatory under the Personal Injury Commission Act 2020 (PIC Act). The claimant’s submissions do not otherwise engage with cl 5.16 of the Guidelines.
Even if the claimant were able to establish the treatment is authorised by the Guidelines the cost of treatment must be reasonable and necessary in the circumstances pursuant to s 3.24. Given my determination above that the claimant has not established the interpreter fees were reasonable and necessary in connection with the treatment provided by Dr Lam, Ms Lin and Ms Yu I do not need to consider whether the treatment is authorised by the Guidelines for the purpose of s 3.28.

Section 8.10

For reasons set out above, I do not consider interpreter fees incurred in connection with treatment provided by Dr Lam, Ms Lin or Ms Yu to be costs of making a claim for statutory benefits for the purpose of s 8.10 of the MAI Act.
This leaves the interpreter fees incurred in connection with “Consultation with the legal representative Stephen Young Lawyers” to be considered under s 8.10.
Relevantly, s 8.10 permits the recovery of costs and expenses in relation to claims for statutory benefits as follows:
(1)    “A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2)    The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3)    A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4)    …”
(emphasis added)
As set out above, the entitlement to costs under s 8.10(1) is qualified by sub-sections, including sub-s (3) which provides that the recovery of costs is only allowed if payment is permitted by the Regulations or the Personal Injury Commission (Commission).
Schedule 1 of the Regulation sets out the matters in which costs are permitted. The Regulation permits payment of costs in connection with certain disputes arising in a claim for statutory benefits, as listed in Sch 1.
The authorities relied on by the claimant note the qualification on the extent to which payment of legal costs is permitted under s 8.10, a matter overlooked in the claimant’s submissions. The Hafeez decision is distinguishable from this merit review as it clearly pertained to costs of a medical assessment, which are costs permitted by the Regulation, as identified in Sch 1. The dispute in respect of which the claim for costs related in the AVL decision is unclear. However, the reasons in the AVL decision clearly note the qualification on the extent to which costs are permitted under s 8.10(3).
As s 8.10(3) restricts the claimant’s entitlement to costs to only those costs “permitted by the regulation or Commission” the claimant must point to a regulated merit review matter, a medical dispute or a regulated miscellaneous claims assessment matter in Sch 1 of the Regulation to be entitled to costs. The claimant has not done so.
Clause 22 of the Regulation provides:
“(1) Except as otherwise provided by this Part, the costs set out in Schedule 1 are the maximum costs recoverable by Australian legal practitioners and claimants for--
(a) legal services provided by an Australian legal practitioner to a claimant or to an insurer in a motor accidents matter, and
(b) matters that are not legal services but are related to a motor accidents matter.”
Pursuant to s 8.1 of the MAI Act “legal costs’ has the same meaning as it has in the Legal Profession Uniform Law (NSW) 2014 (the LPUL) and “includes amounts payable to a law practice for legal services as well as other items that may be charged (such as disbursements) but does not include interest”.
Interpreter fees in connection with a solicitor consultation is a disbursement and falls within the definition of “legal costs” for the purpose of the MAI Act (and the LPUL).
As can be seen from the above the structure of the MAI Act and Regulation regarding payment of legal costs is as follows:
(a) disbursements such as interpreter fees incurred in connection with the provision of legal services are legal costs for the purpose of the MAI Act (s 8.1 of the MAI Act);
(b)    the claimant is entitled to legal costs only if they are permitted by the Regulation or the Commission (s 8.10(3) of the MAI Act);
(c)    legal costs in connection with a claim are permitted for those disputes listed in Sch 1 of the Regulation and it follows that if a dispute is not listed in Sch 1, costs are not permitted by the Regulation;
(d) if costs were not incurred in connection with a matter listed in Sch 1, then those costs, including disbursements, are not payable by the insurer as they are not permitted by the Regulation (s 8.10(3) of the MAI Act), and
(e)    if legal costs were incurred in connection with a matter listed in Sch 1 of the Regulation, then the claimant is entitled to reasonable and necessary legal costs, subject to the cap on the maximum amount payable for legal costs pursuant to cl 22 save for costs of the kind listed in cl 20 of the Regulation which fall outside the cap.
Relevant to this matter, pursuant to cl 20(f) interpreter fees fall outside the cap under cl 22. However, interpreter fees:
(a) must be reasonable and necessary, and
(b) are only recoverable if incurred in connection with a matter listed in Sch 1 of the Regulation that is, if they are permitted by the Regulation (or the Commission).
As the claimant has not pointed to a matter in which costs are permitted by the Regulation the interpreter fees in question are not payable under s 8.10 of the MAI Act.
Clause 20 of the Regulation is not a standalone provision permitting payment of costs of the kind listed in cl 20, regardless of whether there is permission elsewhere in the Regulation. If that were the case, the clause would not be reconcilable with s 8.10(3) which does not distinguish between regulated maximum costs under cl 22 and excluded costs under cl 20 of the Regulation and provides that the claimant “is only entitled to recover … costs … if payment of those costs is permitted by the regulations.” This wording makes clear there must be express permission in the Regulation for payment of the costs in question.
Clause 20 of the Regulation simply states that costs referred to in Part 6 of the Regulation do not include costs of a kind listed in cl 20. Clause 20 does not extend to permit payment of such costs and nowhere else in the Regulation can permission for payment of costs in connection with a claim for statutory benefits be found outside of Sch 1 of the Regulation. It follows that if the costs were not incurred in connection with a matter listed in Sch 1 (noting s 8.10(3) does not distinguish between costs regulated by cl 22 and unregulated costs under cl 20) then pursuant to s 8.10(3) of the MAI Act the costs are not payable, unless permitted by the Commission, regardless of whether the costs in question fall under cl 20 or cl 22 of the Regulation.
In this matter, the costs have not been permitted by the Commission and for the reasons set out above, they are not permitted by the Regulation. Accordingly, the interpreter fees incurred in connection with solicitor consultations are not payable by the insurer.
Even if the claimant were able to establish the interpreter fees are costs in connection with a matter in which the Regulation permits costs the claimant has provided no information upon which one could assess whether the interpreter fees were reasonable and necessary.
The claimant was directed to state the nature and purpose of the legal services provided at the time the interpreter services were provided by providing a clear statement as to the specific aspect of the claim under consideration during the client conference/attendance on each of these dates when an interpreter was retained. This information has not been provided. Nor has any information been provided upon which an assessment as to whether the costs were reasonable and necessary could be made. The claimant adopts a rudimentary approach that is, if the cost was incurred they must be reasonable and necessary. However, this is clearly not the measure of whether costs are reasonable and necessary under the MAI Act or the LPUL.
As the claimant has not established the interpreter fees incurred in connection with solicitor consultations were incurred in connection with a matter in respect of which costs are permitted by the Regulation and the Commission has not otherwise permitted payment of these costs, the interpreter fees are not payable under s 8.10 of the MAI Act.
As to the costs of this merit review, Sch 1 of the Regulation does not permit costs in connection with a dispute under Sch 2, cl 1(i), cl 1(aa) or cl 1(m) of the MAI Act. Accordingly, the claimant’s entitlement to costs of this merit review is nil.

Exceptional circumstances

The claimant seeks costs on the basis exceptional circumstances exist that justify payment of legal costs under s 8.10 of the MAI Act.
As a merit reviewer, I do not have jurisdiction to allow costs for exceptional circumstances. Pursuant to s 8.10(4)(b) of the MAI Act only the Commission can permit payment of legal costs if the Commission is satisfied there are exceptional circumstances. Pursuant to s 8 of the PIC Act the Commission consists of the President, Deputy President and non-presidential members, and does not include merit reviewers. In any event, I consider that no exceptional circumstances exist in this matter that would justify payment of legal costs.

Section 6.21

The claimant seeks a costs penalty against the insurer under s 6.21. Only the Commission can impose a costs penalty under s 6.21. In any event, given the outcome of this merit review it follows that a costs penalty should not be imposed.

CONCLUSION

For the reasons set out above I conclude the interpreter fees the subject of this merit review incurred in connection with treatment provided by Dr Lam, Ms Lin and Ms Yu on the following dates are not payable by the insurer under s 3.24 or s 8.10 of the MAI Act:
(a)    12 August 2021;
(b)    26 August 2021;
(c)    23 September 2021;
(d)    21 October 2021;
(e)    18 November 2021;
(f)    17 December 2021;
(g)    13 January 2022;
(h)    14 September 2022;
(i)    7 October 2022, and
(j)    12 October 2022.
For the reasons set out above I conclude the interpreter fees that are the subject of this merit review incurred in connection with solicitor consultations on the following dates are not payable by the insurer under s 8.10 of the MAI Act:
(a)    22 October 2021;
(b)    26 October 2021;
(c)    17 June 2022, and
(d)    8 July 2022.
For the reasons set out above I conclude the claimant is not entitled to costs of this merit review under s 8.10 of the MAI Act.
Accordingly:
(a) the reviewable decision is affirmed, and
(b) the claimant’s entitlement to costs of this merit review is nil.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
·        the application, reply and supporting documentation;
· MAI Act,
·        the Regulation;
·        PIC Act, and
·        the LPUL.

[2022] NSWPICMR 65

17 November 2022